Attorney

Started by MaureenM1 • 6 replies • 1475 views

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MaureenM1 (PA)
Posts: 344

Posted:

Should our Association have an attorney? Our builder who still has control of our development and is President of
the Association had his personal attorney draw up a resolution for a special assessment,however, I feel that this
is a conflict of interest. Our Association (all other homeowners) do not have our own attorney.

Should we have an attorney that represents our interests or can the President use his personal attorney for Association business.

MicheleD (Kentucky)
Posts: 4,491

Posted:

I'm not sure how you know this attorney is the developer's "personal" attorney as opposed to one that the developer likely uses for all his company's business.

The attorney is paid out of association funds, not the developer's private funds.

So the attorney is not representing the developer, personally.

And if the developer still has control of the development, he likely has the votes to make whatever resolutions he cares to, whether he uses a "personal" attorney, a "business" attorney, or no attorney at all.

The "other" homeowners would be represented by their votes for or against whatever items for which they are eligible to vote.

If any individual homeowner doesn't like the way a vote was conducted or feels that something was done contrary to the legal, governing documents, then that individual homeowner is likely free to contact his or her "personal" attorney to investigate what his/her options might be.

As long as the developer has control of the organization, those options are probably fairly limited.

When is the transition supposed to occur?

MaureenM1 (PA)
Posts: 344

Posted:

I know because everytime he gets mad he tells us to contact "his" attorney and not correspond to him.

Regardless, me and the other board member told him that he was not taking monies out of the Association budget
to pay for resolutions that he decides with his 3 votes to our 2. Our budget is VERY tight and the resolution
was a special assessment he wants to charge homeowners for gutter cleaning. He paid for it himself.

The development will not be turned over to the homeowners until 75 percent of the homes are sold or 7 years which is around 2012. With the real estate market the way it is, the builder is building and renting. He owns 16 of 32 homes. He rents 9, 7 are for sale, if they don't sell he will rent them. Right now he owns 20 and 20 are privately owned (there are only 40 homes in our development) the 20 includes four lots that he is saving until the market picks up because on those lots he built larger townhomes.

GlenL (Ohio)
Posts: 5,491

Posted:

Maureen it might not be right, it might not be fair but until transition like it or not he controls the HOA. Now you guys can waste your time and money hiring an attorney but in the end its going to come down to the contract you all voluntarily signed which more than likely gives him broad powers and discretion to manage the HOA until turnover.

Maintenance free living doesn’t mean free maintenance and since gutter maintenance is a responsibility of the HOA then the HOA needs to pay for it. I remember your post where you were complaining where he was trying to make it a homeowner expense rather than an HOA expense and I told you then – One way or another the homeowners are going to pay for it.

BTW How much is the SA for?

Studies show that 5 out of 4 people have problems with fractions

MaureenM1 (PA)
Posts: 344

Posted:

It's only for 37.00, however, it was assessed on only the homes with the clogged gutters. It's not the cost, per the owners, it's the principal. They feel and I think I agree with them that the dues should have been raised and all owner had to pay it.

They are also frustrated that we live in a gated community and our gates have not been operational since the development began in 2005 and they also have several other issues with the builder (who is the President of the Association). ie, built homes smaller and for 100,000 less in our community so now their home values have dropped.

They don't see the development ever being turned over to the owners since he owns so many homes privately and we have at least 2 more years before the 7 year cut off date.

They are frustrated as am I but there is nothing we can do about it at this point.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Maureen, I hear you, it's frustrating, to say the least.

But don't confuse him saying "contact my attorney" with any implication at all that it's his "personal" attorney.

My husband owns his own business. He has an attorney that does work for the company.

He also tells people to contact "his" attorney, when in reality, the attorney works for and gets paid by the corporate entity that is my husband's company.

So the attorney who is doing the resolutions is, indeed, the "HOA" attorney, since the developer is paying him, as I said, with corporate (HOA) funds to do the legal work and not with money out of his own personal bank account.

My guess is you (the board that is outnumbered by his votes) would not get far trying to push a "conflict of interest" case against him.

I hate that you are going through this, but our developer did the same thing with some phases of our development re: not building homes to the minimum square footage required in his own covenants, and allowing for exterior materials that the covenants specifically prohibited (such as vinyl).

But since he has the bulk of the voting, he can and did grant "waivers" for those variances.

RobertR1 (South Carolina)
Posts: 5,164

Posted:

Maureen,
I don't have a lot of disagreement with what has been posted and it appears that is the way it works. But, me, personally and maybe some of the others posting might suggest you are in this for the long haul. I don't know how the developer is behaving but he owes you all something. He has to live with you all, you have to live with him, you both will be happier if you reach some common ground. Even a little bit. It has been suggested many times here for folks like you all to form your own group outside the association. The danger is you can get hurt, if you are not smart. You all need to consider how effective you can be other than through the Board. You should do that also, but you need to get attention as investors in this association, shoot for small victories and minor concessions, show this guy you all can be an asset other than the minority on the board. You must have solid leadership, stay very smart and pick, pick pick till you get respect. It will work if done properly, and if he does not respond and he really becomes unbearable, take him to court, spread the cost around. Start with setting up a homeowner website. He will disapprove likely and consider it a threat, prove him wrong and make it an asset.

$37.00 to get gutters cleaned is a steal, I suspect. Probably not proper if the cost is not equal, but that is another story and will depend on what your documents say..........IMHO Remember this, as time passes the developer influence will become less, the HO influence will become more, until the developer is gone and the HOA has complete or majority control.

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